from the game-not-over dept

Here is something you, the dear Techdirt reader, may not have known about me: I had always thought that there was only one proper spelling for the name "Lindsey." I'm not sure why I thought that, but I was certain that name was only spelled with an "e" before the "y." But, it turns out, spelling it as "Lindsay" is a perfectly common and accepted alternate spelling for the name. And the only reason that I now know that is because Linsday, with an "a," Lohan will not let her lawsuit against Take-Two Interactive -- for appropriating her likeness for several characters, which didn't actually happen -- die its final death.

First, a refresher. Lohan decided that a side quest character in Grand Theft Auto 5, which was actually an amalgam of several Hollywood starlet tropes, violated her publicity rights. She also claimed that an entirely different character that was used on some of the game's marketing and packaging was also her and also violated her publicity rights. The case wove its way through the past half-decade, largely with the court and Take-Two casting narrow eyes at the mountains of paperwork Lohan's legal team was able to produce while somehow maintaining an inability to come up with claims that were in any way credible, before the court finally tossed the lawsuit entirely. The court at the time made it clear that Take-Two's characters weren't direct appropriations of Lohan's likeness and that the parody amalgam starlet it had created was clearly protected by the First Amendment.

Lindsay Lohan has been granted an appeal in her lawsuit against the maker of the Grand Theft Auto video games. Last year, the Appellate Division Courthouse of New York State tossed the case, stating it was without merit. Her appeal was accepted by the New York Court of Appeals on 16 February.

It must be nice to have the kind of money required to keep the legal team going on a lawsuit that's been a loser at every turn. Still, it's perplexing that this lawsuit hasn't been put out of its misery at this point. The nature of the characters and their status as protected speech seems as clear cut as it gets. And, perhaps more importantly, the character that Lohan is desperate to associate herself with for the purposes of this lawsuit is one that is depicted engaging in sex acts in a public setting and being photographed doing so. I'm struggling to understand why one would want to engage in this kind of legal reach under those circumstances.

Her legal staff should be informing her that it's time to give this whole thing the Ol' Yeller treatment. Why they aren't doing so is beyond me.

from the bwah? dept

Somehow and for some reason, the head-scratching lawsuit between actress Lindsay Lohan and Take-Two Interactive continues to move forward. If you'll recall, in 2013 Lohan began asking her lawyers about suing Take-Two over what she claimed wrongly was a direct depiction of herself in the game Grand Theft Auto 5. The character in question is clearly a composite parody of all kinds of Hollywood starlets, in part composed of references to Lohan's antics, and in part composed of references to other starlets' antics. Which is ultimately entirely besides the point, because the depiction is parody in nature and that really should have been the end of all of this. Except Lohan's legal team moved forward with the suit, and even amended it to include as much paperwork as possible, all while asserting that her legal claims could get around the statute of limitations on bringing the suit because Take-Two had manipulated the cover image for the game, which featured a bikini-clad girl Lohan also claims is a depiction of herself, in order to fit it on the DVD the game was shipped with.

It seemed for all the world like a case destined to be tossed at the court's earliest convenience, which of course is why the judge instead has proudly proclaimed that the suit can move forward.

On Friday, New York Supreme Court judge Joan Kennedy wrote she must make all inferences in Lohan's favor at this stage, can't rely upon defendants' documents aiming to show the images in question don't show Lohan and ruled that the actress' statements in her pleading had sufficiently alleged causes of action to merit a denial of the dismissal motion. The judge also rejected Take-Two's argument that Lohan had brought her lawsuit too late.

From the ruling itself:

Defendants have not been able to prove, at this juncture of the litigation, that the republication exception to the one year statute of limitations is not applicable to this case because the intended audiences were the same as those of the original publication and the images remained the same. Plaintiff specifically alleges facts which contend otherwise.

Now, earlier in the ruling, Judge Kennedy notes that the court is required, for requests by defendants for dismissals such as these, that pretty much everything about the case must be interpreted in the most generous manner towards the plaintiff. That said, it seems crazy that the court doesn't bother to understand at this point of the case that the "re-publishing" that Lohan's team is alleging consists only of resizing an image to fit on a DVD. Take-Two went so far as to ask for sanctions on Lohan for so meritless a legal claim, yet the court takes only a surface look at all of this and sides with Lohan on procedural grounds.

And so now discovery will begin, assuming Take-Two doesn't bow out and settle. Which it shouldn't, because this lawsuit shouldn't survive.

from the publicity-wrongs dept

When we last left the saga of Lindsay Lohan's 10 page complaint against Take 2 Interactive over a publicly-fornicating, drunk-driving character in Grand Theft Auto 5 that she insisted was her own spitting image, Take 2 was asking for the whole thing to be dismissed because the character is obviously not a reproduction of Lohan at all, but a parody take on celebrity fame. In addition to that, Take 2 also mentioned that the statute of limitations may have expired on the issue, since it had been well over a year since the side-mission featuring the alleged-Lohan-doppelganger had been announced and publicized.

Well, Lohan's legal team has responded with...paper. Lots more of it, actually. Her amended complaint comes in at a whopping sixty-seven pages and it's chock-filled with images of Lohan in what she's insisting proves that Take 2 used her image as a basis for Lacey Jonas.

Lohan's lawyers have now reacted to this gambit by on Wednesday stuffing 45 pages of pictured exhibits into an amended complaint, including a photograph of the game CD, one of which features a blonde, red bikini-clad woman holding up the peace sign. According to the amended complaint, the game publisher "used a look-a-like model to evoke the persona and image" of Lohan by imitating a photograph that was once taken of her in 2007. On some of the game discs, the blonde character that Lohan asserts is her doppelganger is shown in what the lawsuit calls "an arrest pose known as the 'Stop and Frisk.'"

Anyway, her legal team is trying to get around New York's publicity rights laws, which are limited to the realm of advertising, by including all kinds of images of the Lacey Jonas character that Take 2 put on t-shirts and coffee mugs. Except, of course, that none of that was in the original complaint and the character in question still isn't a direct reproduction of Lindsay Lohan. It's a composite parody on L.A. female celebrities in general and it's protected speech due to its nature.

As for how the Lohan legal team is attempting to get around the statute of limitations...whoo boy.

Lohan has reacted to this defense by talking about the "republication" of her image upon the release of the actual videogame later that year. According to the amended lawsuit, Take-Two modified her image to fit on the game disk. Lohan now claims that this "modification" should satisfy the exception to the one-year statute of limitation.

It's the same image sized to fit onto a DVD disc...and that somehow excuses her not taking action for over year because why exactly? In the end, hopefully the court will see this legal action for what it is: a misunderstanding of parody and the first amendment coupled with a plea for attention.

from the live-by-the-sword... dept

We've come to know Lindsay Lohan quite a bit here at Techdirt, chiefly around the way she appears to see the American legal system as her own publicity engine. After making a name for herself for filing claims against all kinds of companies she somehow thinks are using her image in the most subtle way possible, she recently decided to file a publicity rights claim against Take Two Interactive, makers of Grand Theft Auto 5. See, Lindsay saw the GTA character Lacey Jonas drive drunk and screw in public in the fifth installment of the series and decided that was totally her.

"Lindsay Lohan complains that her image and persona have been wrongfully used by Take-Two in the video game Grand Theft Auto V, but her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes," states the defendant's memorandum to support dismissal.

The idea of placing a monetary sanction on an individual abusing the legal system is tantalizing enough on its own; to have this done to the insipid Lindsay Lohan, attacker of free speech, parody and video games, super-charges the attractiveness of the possibility. It's high-time that the publicity rights trend gets taken down a few notches, if not completely abolished. Any step in that direction would be welcome.

You might wonder how a filing like this, one which might result in payment going the opposite direction, could get past Lohan's legal team. As we've noted before, she isn't the best judge of who to hire as a lawyer, it seems.

In taking on Take-Two, Lohan has dispensed with the lawyers who were caught plagiarizing in the Pitbull case in favor of new legal representation that spelled her first name "Lindsey" in one part of the complaint.

Take Two Interactive is essentially arguing that the claims by Lohan are without merit, something she and her team should have been aware of considering the results of the action against Pitbull, which found that creative works, even if for sale, are protected in the event of parody. I had already figured the company would win this for that reason, but if we can start sanctioning celebrities making spurious claims, all the better.

from the dragging-yourself-through-the-muck dept

And we're back with another episode of Lindsay Lohan Sues People For Stuff They Didn't Do. It's been a while, so you may not remember that Lohan, who has been quite lawsuit-happy in the past, was reportedly discussing filing a likeness-rights suit against the makers of Grand Theft Auto 5, claiming that a character in the game is based on her. That was in December of last year and apparently over six months of her lawyers explaining to her what parody is hasn't taken, because reports are now coming out that she has indeed filed in a New York court.

Lindsay Lohan is suing the makers of the "Grand Theft Auto" video games. The actress says the latest installment used her image and created a character based on her without her permission. Lohan's lawsuit says a character named Lacey Jonas is an "unequivocal" reference to the "Mean Girls" and "Freaky Friday" star. The suit says Lohan's image, voice and styles from her clothing line are depicted. It says the game features West Hollywood's Chateau Marmont hotel, where Lohan once lived.

Once again, lawyers for GTA5 should be able to walk into the courtroom, softly say the word "parody", and then walk right the hell back out victorious. But, as I previously described, Lohan's allegations are way more fun than that. She claims that two separate characters are based off her in the same game, including a character that is described as a drunk driver and who enjoys fornicating in public places. One would think that a person would want to avoid claiming a likeness to such a thing, but that's apparently not the case with old LiLo. Worse yet, while there may be some obvious draws on Lohan's life story to create this parody, there are several aspects of both characters that clearly have nothing to do with her and are simply composites of celebrity culture in order to create a funny homage to the L.A. celebrity lifestyle.

As a general matter, you will not be held liable for using someone's name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone's name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person's identity.

As I mentioned in the last post, I've played this game, played this mission, and I didn't once even think about Lindsay Lohan. The character is just mocking celebrities that get themselves into trouble and generally behave like entitled miscreants. The only reason I now associate those kind of personality flaws with Lindsay Lohan is because she insisted on it through this lawsuit that will likely fail. So...well done all around, Lindsay!

from the buckets-of-crazy dept

Lindsay Lohan, everyone's favorite train-wreck, sure seems to come up in the world of intellectual property an awful lot. I'm not sure if this is because she has some over-inflated sense of entitlement, or if she's just the devil-incarnate here to entertain me personally, but she's gotten angry about being mocked in music, angry about a talking baby being named Lindsay (and being a "milkaholic"), and angry at the invention of the video camera for showing her stealing stuff that didn't belong to her.

But now reports are that she's looking to step up her game by going after Grand Theft Auto 5 over their portrayal of her, except that (as with the E-Trade babies) it wasn't a portrayal of her at all. Let's take her reported claims to her lawyers in order:

-- The video game cover shows a woman holding a cellphone who looks Lindsay-ish. There's been debate over whether it looks more like Kate Upton or Shelby Welinder.

-- Part of the game features a mission where a Lindsay Lohan look-alike asks the player to take her home and escape the paparazzi.

If you've played the game, and I have, and you played the paparazzi missions and thought, "holy balls, they're making fun of Lindsay Lohan!", then you need severe psychiatric care. The character in question, Lacey Jonas, is an obvious composite character. The closest thing to referencing Lohan is that Lacey Jonas is famous and once starred in a "cheerleader competition" movie. Sounds like Lohan, except that all the other facts about the character don't and the character doesn't look like Lohan, which sort of kills the whole "they stole my likeness" claim. As does claiming you were also used for a completely different character.

Another part of the game shows another Lindsay-like character at a hotel resembling the Chateau Marmont hotel in West Hollywood -- a place Lindsay not only frequents but once lived at -- and the mission is to photograph her having sex on camera.

We've got more problems, in that this completely different character, Poppy Mitchell, is a recurring character in the series. While that wiki states that this character might be a parody of Lohan, it certainly isn't much of a likeness beyond the character having been convicted of drunken driving.

And all of this is a bit beside the point. Even if each and every one of these characters were somehow a lifting or reference to Lindsay Lohan, it ought to be covered under the same blanket of parody that covers pretty much everything else in GTA5, given that the entire setting is a mocking look at Los Angeles. And I'm not sure what Lohan's legal team is planning on doing with her request to look into all of this, but continuing with the claim that video game characters with the personality traits of fornicating in public, drinking and driving, and being washed up movie stars probably isn't something she should be loudly pointing to as representing her.

from the post-mortem dept

Since recollections of the SimCity debacle have been re-conjured thanks to EA giving the finger to the modding community (read: mega-enormo fanbase), perhaps it's useful to examine how a painful launch doesn't have to turn your entire fan-base against a company. Unless you've been living under a rock that doesn't get a TV signal lately, you're probably aware that the latest iteration of Grand Theft Auto was recently released. One of the big draws of the game, the online component, wasn't available immediately, instead reserved to a tantalizing "coming soon" tab in the game's pause menu. Simply as disclosure, I know this because I'm a paying GTA customer.

Well, the GTA Online launch kicked off this week and it went about as smooth as Hugh Jackman's face after he hasn't shaved for twenty-six days. The vast majority of gamers couldn't even get the online portion of the game to launch due to crowded server issues, and those that did faced problems with getting the game to behave correctly. So, you imagine Rockstar got the same response as EA, right? Wrong. Because Rockstar told everyone that things were going to be rocky and have since proved that it's at least as interested in fixing the issues as it is in making money. See the following warning:

There will be the typical growing pains for an online game, including but not limited to crashes, glitches, crazy bugs, gameplay modes and mechanics that need re-balancing and other surprises! Even in GTAV Story Mode, some of you may have seen a few odd and even amusing little glitches out there last week. This sort of thing is inevitable in a massive open-world game and there’ll surely be lots more unexpected oddities like this in the Online world next week – rest assured we’ll be monitoring and actively doing all we can to smooth such things out as they happen, but we need your help to find them, as well as your feedback to help fine tune all of the game's systems so everything is perfectly balanced.

This stands in stark contrast to EA's launch of SimCity, which resulted in most of the same feedback they received when it announced the game and in beta: stop it with the always-online crap. EA wasn't willing to listen to its users, where Rockstar is actively recruiting the feedback. This makes a world of difference, including creating a sense of unity between the game makers and their fans. It's important and it's something EA got horribly wrong.

As for how it's handling things post-not-awesome-launch? Well, in addition to going the normal route of actively informing fans what is currently going wrong, what it's doing to make fixes, and how it's going to do so, Rockstar told people it doesn't want their money until it gets things right for everyone.

For the time being and until we have been able to get everybody access to GTA Online and things are running smoothly, we have disabled the option of purchasable GTA$ cash packs. Players can however keep on earning GTA$ by pulling off Jobs and other profitable gameplay activities rather than purchasing cash packs.

Can you even imagine a fantasy world where EA refuses to sell you things until it gets the core game stable? It certainly didn't happen with SimCity. Once again, connecting with your fans and being awesome will get you everything in the gaming world. Sure, people are frustrated with how GTA Online has performed thus far, but nobody is calling for heads to roll. Rockstar can take full credit for that.